Pease v. Barnett
New York Supreme Court
Motion by the defendant for a new trial upon exceptions taken at the Monroe Circuit, where a verdict was ordered for the plaintiff and the exceptions were ordered to be heard in the first instance at the General Term. The defendant requested to have the case submitted to the jury, but the court refused so to do. The action was brought upon a bond executed by Azubah Carpenter.
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Motion by the defendant for a new trial upon exceptions taken at the Monroe Circuit, where a verdict was ordered for the plaintiff and the exceptions were ordered to be heard in the first instance at the General Term. The defendant requested to have the case submitted to the jury, but the court refused so to do. The action was brought upon a bond executed by Azubah Carpenter. Pending the action she died, and the same was revived and continued against the defendant, as her executor. The answer contained a defense alleging a material alteration of the bond, after its execution, by the insertion…
1Opinion of the Court
HaediN, J.:
Upon the trial it appeared that the bond in suit was given for the debt of Dr. Carpenter, and that the defendant was not originally liable therefor.
In order to bind her to its payment, the words evincing her intention to charge and bind her separate estate with the payment of the bond, upon which she was to be made a surety, were essential and material to its validity as against her. Therefore, if the clause charging her separate estate was inserted after the execution of the bond, it was a material alteration, and such an alteration as to avoid the instrument as to her. (Paine v.…
2Cases cited3 opinions
- Elwood v. . the Western Union Telegraph Co.New York Court of Appeals · 1871
- Paine v. . JonesNew York Court of Appeals · 1879
- Van Buren v. CockburnNew York Supreme Court · 1852